Bangalore District Court
B.S. Viswanatha Reddy vs Srinivasa Reddy on 4 June, 2018
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
DATED THIS THE 4th DAY OF JUNE, 2018
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.6381/2009
PLAINTIFF/S: B.S. VISWANATHA REDDY,
S/o B.N. Srinivasa Reddy,
Aged about 49 years,
R/at Bommandapalli Village,
Kothagondapalli Tharaf,
Hosur Taluk,
Dharmapuri District,
Tamil Nadu.
(By Sri.Goutam & Rajeswar, Advocate)
--Vs.---
DEFENDANT/S: 1. SRINIVASA REDDY,
S/o Narayana Reddy,
Aged about 50 years,
R/at Vangalahalli Village,
Agara Post, Begur Hobli,
Bangaluru South Taluk,
Bengaluru District.
2. PAPAIAH @ Chikkappaiah,
S/o late Shiguvappa,
Aged about 65 years.
2 O.S.No.6381/2009
3. SHIVARAM,
S/o Papaiah,
Aged about 42 years.
4. SREERAMA,
S/o Papaiah,
Aged about 35 years.
5. SHANKARAPPA,
S/o Papaiah,
Aged about 33 years,
The defendants 2 to 5 are
R/at Parangipalya Village,
Begur Hobli,
Bengaluru South Taluk,
Bengaluru District.
6. Mrs.PADMA,
W/o Srinivasa Reddy,
R/o Vangalahalli village,
Agara post, Begur hobli,
Bengaluru south taluk,
Bengaluru district.
(D.1 By Sri.M.S. Varadarajan,
D.2 to D.5 Sri.Mari Gowda,
D.6 Sri.P. Raja Reddy,
Advocates,)
Date of institution of suit : 11.08.2009.
Nature of suit : Ejectment.
Date of commencement
of recording of evidence : 11.04.2014.
3 O.S.No.6381/2009
Date on which the judgment
was pronounced : 04.06.2018
Duration of the suit: year/s month/s day/s
08 09 24
* * * * *
JUDGMENT
This is a suit filed by the plaintiff seeking the relief of possession.
2. In brief the case of the plaintiff is as under:
The plaintiff in para 3 of the plaint stated that the defendant No.2 to 5 are the sole and absolute owner in possession of the property bearing K.No.8/1 measuring east to west 65 feet and north to south 100 feet situated at Parangipalya @ Rudrappanapalya village, Haralakunte dhakle, Begur hobli, Bengaluru south taluk, Bengaluru district, i.e., the suit schedule property. Upon perusal of the contents of the said 4 O.S.No.6381/2009 para 3 and para 4 of the plaint wherein the plaintiff has stated with regard to the factum of defendant No.2 to 5 acquired the above referred property by Succession and family settlement, as it being the ancestral property.
3. It is further contended that the defendant No.2 to 5 offered to sell the suit schedule property to the plaintiff for a consideration of Rs.50,000/- at the first instance for their legal necessity and family benefit. Accordingly plaintiff ascertained his title and possession and thereby entered into agreement of sale dated 20/12/1989 with the defendant No.2 to 5 on payment of Rs.10,000/- as advance towards the said sale consideration. It is further contended that the above said agreement of sale was executed in the presence of the witnesses attested therein.
4. It is further contended that the plaintiff insisted the defendants for completion of sale, they 5 O.S.No.6381/2009 disclosed that the 1st defendant filed a case for injunction in respect of a non-existing property in order to knock of the schedule property, as such, sought time to complete the sale after the end of said litigation. It is further contended that the defendants No.2 to 5 demanded to increase the sale consideration and pay the entire amount to meet the said litigation and other legal necessities and thereby to convey the schedule property free from all such litigations and encumbrances. Accordingly the defendant No.2 to 5 received further sum of Rs.85,000/- by 20/12/1992 in the presence of witnesses and executed a shara on the said agreement agreeing to complete the sale after the end of said litigation instituted by the 1st defendant.
5. It is further contended that the defendant No.2 representing defendant No.3 to 5 executed General Power of Attorney dated 21/7/2001 along with his elder brother in favour of plaintiff by delegating all the property rights and put the plaintiff in possession 6 O.S.No.6381/2009 of the suit schedule property. Accordingly the plaintiff entered into the possession of the suit schedule property and started exercising all the proprietary rights under the said agreement of sale dated 20/13/1989 and the General Power of Attorney dated 21/7/2001. It is further contended that the plaintiff acquired an indefeasible and un-shattered interest on part performance of the contract dated 20/12/1989 by performing several acts thereafter and is in possession and enjoyment of it openly continuously and notoriously from 21/7/2001 till the 3rd week of February 2009. It is further contended that the defendants colluded with each other and managed to get the suit filed by the defendant No.1 decreed on 29th January 2009 in favour of the 1st defendant. It is further contended that the 1st defendant who got the said decree has no manner of right, title or interest, muchless possession over the schedule property nor derived any right under the said decree in any manner. On the other hand the other defendants connived with 7 O.S.No.6381/2009 him to make wrongful gain and to cause wrongful loss to the plaintiff. It is further contended that the said decree is not related the suit property and hence cannot infringe or abide the plaintiff's lawful possession and enjoyment of the suit schedule property acquired by part performance of the contract under the agreement dated 20/12/1989. It is further contended that under the guise of the said unrelated decree the defendants have colluded with each other and the 1st defendant forcibly occupied the suit schedule property to defraud the plaintiff and to make unlawful gain under the circumstances. It is further contended that though the defendants have no manner of right, title or possession in the suit schedule property still the plaintiff is unable to recover the possession and protect his rights since the defendants are local and very powerful moneyed persons, without the aid of this court.
8 O.S.No.6381/2009
6. It is further contended that the plaintiff was in possession of the suit schedule property as on 19/2/2009 that he has been dispossessed by the defendants thereafter thereby depriving him of the schedule property, that the dispossession has taken place without his consent and the same was done otherwise than in due course of law, and that the dispossession took place within six months before the institution of the suit and therefore under section 6 or the Specific Relief Act 1963 the plaintiff is entitled to put back in possession of the suit schedule property. It is further contended that the cause of action for filing the suit arose in the third week of February 2009. It is further contended that the subject matter of the suit is valued as per valuation slip and court fee is paid accordingly on the plaint, etc. On these grounds and among other grounds he prays for to decree the suit.
9 O.S.No.6381/2009
7. In pursuance of the suit summons sent by this court the defendant No.1 to 5 appeared before the court through their respective counsels. During the pendency of the present suit the defendant No.6 has been impleaded as party to the proceedings.
8. The defendant No.1 filed his detailed written statement by denying all the plaint averments. The defendant No.1 in his written statement contended that the description of the property in the plaint schedule is erroneous and the error is committed deliberately by the plaintiff to mislead this court. It is further contended that the property is described as bearing K.No.8/1, but there is no such property at all in existence and deliberately such a description is given by the plaintiff in the plaint schedule with malafide intention. It is further contended that the correct number of the property is 7/1-2, 7 and 8. It is further contended that the suit schedule property measuring from east to west 100 feet, north to south 10 O.S.No.6381/2009 100 feet and measurements given in plaint schedule is also incorrect. Property bearing No.7/1-2, 7 and 8 measuring 100 x 100 is the absolute property of the 1st defendant as he has acquired valuable and indefeasible right over the same through registered documents. Confronted with a situation where this defendant has registered documents standing either in his name or in the name of his predecessor, the plaintiff in respect of the property described as above has deliberately given an incorrect description in the plaint schedule to make it appear as though the property over which he is claiming an interest in the suit is altogether different from the one over which the defendant No.1 has acquired indefeasible right.
9. It is further contended that the plaintiff is trying to claim an interest in the property in question through defendant No.2 to 5, but nowhere it is stated in the plaint as to how defendant No.2 to 5 have acquired any right over the property allegedly bearing 11 O.S.No.6381/2009 K.No.8/1. It is further contended that the defendant No.1's father by name Narayana Reddy who had an younger brother by name Thimma Reddy and the said Thimma Reddy was the absolute owner of the property bearing No.7 and 8. The Thimma Reddy executed a gift deed dated 24/8/1980 in respect of this property in favour of 1st defendant's father Narayana Reddy who accepted the said gift and acted upon the same. In the gift deed the extent of the land gifted is described as 5 guntas. Thus approximately 5000 sq.ft. or 50 x 100 sq.ft. By virtue of this gift deed the defendant No.1's father Narayana Reddy became the owner of the property bearing No.7 and 8. After Narayana Reddy's death this defendant has succeeded to the said property and has become the absolute owner of the same.
10. It is further contended that the property in question bears K.No.7/1-2, 7 and 8 respectively and it measures 100 feet x 100 feet. The property bearing 12 O.S.No.6381/2009 No.7/1-2, measuring east to west 50 feet and north to south 100 feet was purchased by this defendant for valuable consideration under the sale deed dated 14/10/1987 executed by one Gowramma and others. Under that sale deed this defendant acquired absolute and indefeasible right over the property bearing No.7/1-2. Thimma Reddy executed a gift deed dated 24/8/1980 and by virtue of gift deed dated 24/8/1980 1st defendant's late father acquired absolute right over the property bearing No.K.7 and 8. It is further contended that the defendant No.2 to 5 did not at any point of time acquire any right, title, interest or possession in respect of the above mentioned property and therefore the plaintiff's claim is patently untenable and palpably absured.
11. In para 11 of the written statement the 1st defendant contended about the filing of the suit in O.S.No.328/1988 against the 2nd defendant and his brother Chikkanna attempted to cause interference 13 O.S.No.6381/2009 with the possession and enjoyment of the property in question and in the said para he has given details of the property in respect of which he has filed the above referred suit. It is further contended that after contest the said suit was decreed in favour of the 1st defendant and the court has held that the description of the property as given by this defendant is correct and the 1st defendant is the absolute owner in possession of the same. The court also negatived the contentions of 2nd defendant and his brother that the correct number of property is No.8/1 and that it belonged to them being their ancestral property. It is further contended that the 2nd defendant along with his brother had already suffered a decree as against 1st defendant in the above mentioned suit.
12. It is further contended that the contention of the plaintiff as urged in this suit are the same as the one urged by defendant No.2 and his brother in O.S.No.323/2018. It is further contended that the 14 O.S.No.6381/2009 issues that arises for consideration in this suit will be practically the same as the issues that were considered and answered in favour of 1st defendant in O.S.No.323/88. The plaintiff in this suit has claimed through the 2nd defendant and his children who are defendant No.3 to 5. The 2nd defendant and his brother Chikkanna were party-defendants in O.S.No.323/1988. It is further contended that in the suit referred above it is already been held that the 2nd defendant and his brother did not have any title in respect of the property in question. Hence the present suit is barred by the principles of resjudicata and for this reason alone the suit is liable to be dismissed.
13. It is further contended that the plaintiff claims to have been in possession of the property in question and he was put in possession by the defendant No.2 to 5. It is further contended that admittedly defendant No.2 to 5 did not have either title or possession as has been conclusively held in 15 O.S.No.6381/2009 O.S.No.323/88. It is further contended that in the said suit it has been held that the defendant No.1 is in possession of the property in question. In these circumstances the question of the plaintiff being in possession of the property in question and the defendant No.1 dispossessing the plaintiff does arise and therefore the suit purportedly filed under section 6 of Specific Relief Act is liable to be dismissed. It is further contended that the plaintiff has not sought for the relief of declaration in the suit and he has prayed for passing a decree of possession. Unless the plaintiff establishes title to the property in question and seeks for declaratory relief, the suit for possession is highly misconceived and the same is liable to be dismissed.
14. It is further contended that the defendant No.1 has executed the gift deed dated 2/5/2009 in favour of his wife Padma gifting the property in question to her. In pursuance to the gift deed the khatha is also transferred in the name of Padma. In 16 O.S.No.6381/2009 these circumstances without impleading Padma, the suit cannot proceed and on that ground itself the suit is liable to be dismissed. It is further contended that the plaintiff seems to have been set up by defendant No.2 to 5 after the 2nd defendant lost the earlier round of litigation in O.S.No.323/88. As such the plaintiff along with defendant No.2 to 5 are only indulging in a speculative litigation and there are no bonafides in the suit. It is further contended that the alleged agreement dated 20/12/1989 does not even bear the signature of the 2nd defendant. The signature found in the same as that of one Papaiah is not at all the signature of the 2nd defendant, who, as far as the 1st defendant has come to understand, signs as Chikka Papaiah only. There is a remarkable difference in the signature of Papaiah found in the alleged sale agreement dated 20/12/1989 when compared with the signature of Chikka Papaish found in the allged General Power of Attorney dated 21/7/2001. It is further contended that the defendant No.2 to 5 in this 17 O.S.No.6381/2009 suit were represented by advocate Sri.M.Krishna Reddy in O.S.No.323/88. The present plaintiff is the brother-in-law i.e., wife's brother of M.Krishna Reddy. This also is indicative of the fact that the plaintiff and defendant No.2 to 5 acting in collusion to defeat the rights of the defendant. It is further contended that there is a document dated 28/1/2005 styled a tripartite agreement and there is a reference to this document in the plaint. In para 47 of the written statement the 1st defendant as stated about the parties to the said documents and further stated that the agreement of sale and the General Power of Attorney are concocted documents. It is further contended that the facts stated in para 47 of the written statement leave no doubt that the sale agreement and the General Power of Attorney set up by the plaintiff in the present suit are the result of collusion that the plaintiff and others have practiced or indulged in to defeat the legitimate right of the 1st defendant that he has acquired over the properties in question and which is 18 O.S.No.6381/2009 now affirmed by the court in O.S.No.323/1988, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
15. The defendant No.2 filed his written statement by denying all the plaint averments. The defendant No.3 to 5 filed a memo adopting the written statement filed by defendant No.2.
16. The defendant No.2 to 5 in the written statement by denying all the plaint averments contended that the plaintiff has filed the present suit claiming an interest in the suit schedule property on the basis of the alleged sale agreement dated 20/12/1989. They further contended that the plaintiffs claim that the defendant No.3 to 5 have executed the above said agreement in his favour agreeing to sell the suit property for a consideration of Rs.50,000/-. They further contended that they have not at all executed any such agreement in favour of 19 O.S.No.6381/2009 plaintiff. So also they have denied the factum of receipt of Rs.10,000/- under the said agreement of sale as contended by the plaintiff. They further contended that the signature appearing as Papaiah in the sale agreement in question is not the signature of 2nd plaintiff. In fact the 2nd defendant name is Chikka Papaiah and he has never signed as Papaiah. It is further contended that the signatures appearing in the alleged agreement are concocted and forged signatures.
17. It is further contended that they have not at all executed any agreement muchless the agreement of sale as claimed by the plaintiff. When that would be the case, the question of defendants No.2 to 5 demanding and receiving any enhanced or further sum of Rs.85,000/- either on 20/12/1992 or any other dates does not arise. It is further contended that the plaintiff claims that the defendant No.3 to 5 have executed General Power of Attorney dated 21/7/2001 20 O.S.No.6381/2009 in his favour with respect to the suit schedule property is not correct. It is further contended that the alleged General Power of Attorney is the result of the fraudulent, misrepresentation practiced on this defendant. It should be mentioned in this context that in the earlier litigation that was pending between the defendant and his brother on the one hand and the 1st defendant on the other in O.S.No.323/1988, the defendant and his brother were represented by an advocate by name M.Krishna Reddy. It is further contended that the said General Power of Attorney is the result of forged and misrepresentation of the 2nd defendant and his brother by their earlier advocate M.Krishna Reddy. Upon perusal of para 15 to 17 it shows that wherein the defendants have stated about the fraudulent act of their advocate by name M.Krishna Reddy and under what circumstance they have signed the alleged General Power of Attorney claimed by the plaintiff. They further contended that neither defendant No.2 or his brother have voluntarily 21 O.S.No.6381/2009 executed any General Power of Attorney in favour of the plaintiff and there was no reason for them to do so. It is further contended that their advocate M.Krishna Reddy is the root cause for the concoction of the General Power of Attorney becomes manifestly evident from the facts set out in para 20 to 24. They further stated about the decree suffered by defendant No.2 and his brother in O.S.No.323/88. They further contended that in the said suit, i.e., O.S.No.323/98 it has been held that property as described in the present suit does not exist as described in the plaint in O.S.No.323/98. Until the said finding or judgment in O.S.No.323/98 is set aside there cannot be any merit in the allegations made in para 15 of the plaint. They further contended that the plaintiff was never in possession of the suit schedule property, as such, the question of dispossession from the suit schedule property does not arise at all. They further contended that the plaintiff has no manner of right, title in respect of the suit schedule property and is claimed to 22 O.S.No.6381/2009 be the same based on the concocted sale agreement and the General Power of Attorney is totally frivolous and legally untenable, etc. On these grounds and among other grounds they sought for the dismissal of the suit.
18. The defendant No.6 filed her detailed written statement by denying all the plaint averments. Upon perusal of the written statement filed by the defendant No.6 it shows that wherein at para 2 of her written statement she contended that there is no cause of action against her to file the present suit. So also upon perusal of the written statement shows that wherein she has stated how the 1st defendant has acquired the suit schedule property and the decree obtained by defendant No.1 in O.S.No.323/1988 against defendant No.2 herein and his brother. She further stated about the creating of agreement of sale and General Power of Attorney by the plaintiff. She further stated that the plaintiff was never in 23 O.S.No.6381/2009 possession of the suit schedule property and that the question of dispossessing the plaintiff from the suit schedule property does not arise at all.
19. The very written statement filed by defendant No.6 shows that she is none other than the wife of 1st defendant. She further stated about the factum of defendant No.1 executing the registered gift deed on 2/5/2009 in her favour in respect of the suit schedule property and delivered the possession of the same to her and she is in lawful possession and enjoyment of the gifted property. She further contended that till the execution of gift in her favour by her husband defendant No.1 as referred above, her husband, defendant No.1 was in possession of the suit schedule property. She further contended that as per section 6 of the Specific Relief Act, 1963 if any person is dispossessed of an immovable property he shall bring a suit for recovery of possession against the persons who have dispossessed. Therefore, firstly the 24 O.S.No.6381/2009 plaintiff has to prove that he was in lawful possession of the suit property and that he was dispossessed unlawfully just six months earlier to the suit by the defendants. Hence the case under section 6 can be filed by a person who has been dispossessed by a dispossessor and when the plaintiff is not in possession, the question of his dispossession by the defendants does not arise.
20. She further stated that the plaintiff is claiming possession of the suit property through defendant No.2 to 5, but no where in the plaint he has stated the mode of acquisition of right, title, or interest in respect of the suit schedule property by the defendant No.2 to 5 or their ancestors, because neither defendant No.2 to 5 or their ancestors have ever possessed the suit site. She further contended that the present suit is an outcome of instigation of an advocate by name M.Krishna Reddy, who is the brother-in-law of the plaintiff herein, who was 25 O.S.No.6381/2009 appearing for the defendant No.2 to 5 in O.S.No.323/1988. It is further contended that the suit is not properly valued and the plaintiff has not paid the proper court fee. It is further contended that there is no cause of action for this suit and the cause of action shown in the plaint is an imaginary and invented for the purpose of this suit, etc. On these grounds and among other grounds she sought for the dismissal of the suit.
21. Heard the arguments of plaintiff and defendant No.1 to 5. The learned counsel representing defendant No.6 filed his written arguments.
22. The learned counsel for the plaintiff in support of his arguments has relied upon the decision reported in (1994)1 SCC page No.1.
23. On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following as many as four issues : 26 O.S.No.6381/2009
ISSUES (1) Whether plaintiff proves that earlier he was in possession of the suit property ?
(2) Whether plaintiff further proves that
the defendants forcibly dispossess
him from the suit property by
trespassing into the same ?
(3) Whether the plaintiff is entitled to
possession of the suit property ?
(4) What order or relief ?
24. The plaintiff in order to establish his case, he himself got examined as PW1 and got marked 25 documents from Ex.P1 to Ex.P25 and closed his side evidence. The defendants in order to establish their case the 2nd defendant himself got examined as DW1 and the 1st defendant himself got examined as DW2 and got marked as many as 6 documents from Ex.D1 to Ex.D6 and closed their side evidence. 27 O.S.No.6381/2009
25. My findings to the above said issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : As per the final order
for the following:
REASONS
26. Issue No.1 & 2: Both these issues are
interconnected, therefore they have been taken
together for common consideration and discussion in order to avoid repetition of facts and also for the case of convenience.
27. The plaintiff in order to establish his case, he himself got examined as PW1 and filed his affidavit by way of examination-in-chief wherein he reiterated all the averments made in the plaint. PW1 further on oath stated before the court that defendant No.2 to 5 are the sole and absolute owners in possession of the suit schedule property. He further stated about the 28 O.S.No.6381/2009 factum of defendant No.2 to 5 obtained the suit schedule property in a family partition. He further stated that the defendant No.2 to 5 offered to sell the suit schedule property to him for consideration of Rs.50,000/- at the first instance for his legal necessity and family benefit. He further stated that accordingly the defendant No.2 to 5 executed an agreement of sale on 20/12/1989 on receipt of Rs.10,000/- as advance towards the said sale consideration. He further stated with regard to the factum of he came to know with regard to the suit filed by defendant No.1 against defendant No.2 and his brother and he was informed by them they are going to execute the registered sale deed after the completion of the said litigation. He further stated that the defendant No.2 to 5 demanded to increase the sale consideration and accordingly as per the request made by them he paid a further sum of Rs.85,000/- on 20/12/1992 in the presence of witnesses and to that effect a shara on the said agreement agreeing to complete the sale after the end 29 O.S.No.6381/2009 of said litigation was made in the agreement of sale dated 20/12/1989.
28. He further stated with regard to the execution of General Power of Attorney by defendant No.2 representing defendant No.3 to 5 dated 21/7/2001 along with his elder brother in his favour by delegating all their property rights and put him in possession of the suit schedule property. He further stated that by virtue of General Power of Attorney executed by defendants as referred above he has been in possession and enjoyment of the suit schedule property, as such he acquired an indefeasible and unshattered interest in the suit schedule property on part performance of contract dated 20/12/1989 by performing several acts thereafter and he is in possession and enjoyment of the suit schedule property openly, continuously and notoriously from 21/7/2001 till February 2009.
30 O.S.No.6381/2009
29. He further stated that the defendants colluded with each other and managed to get the suit decreed on 29th January 2009 in favour of 1st defendant which was filed by the defendant No.1 against defendant No.2 and his brother and by virtue of the said decree obtained by them, they dispossessed him from the suit schedule property. He further stated that the 1st defendant who got the suit decreed has no manner of right, title or interest, muchless possession over the suit schedule property nor derived any right under the said decree in any manner. He further stated that the decree obtained by the 1st defendant is not related to the suit schedule property and hence cannot infringe or abide his lawful possession and enjoyment of the suit schedule property acquired by part performance of contract under agreement dated 20/12/1989. He further stated that under the guise of the said unrelated decree the defendants have colluded with each other and the 1st defendant forcibly occupied the suit schedule property to defraud him and to make 31 O.S.No.6381/2009 unlawful gain. It is further stated that the defendants have no manner of right, title or possession in the suit schedule property still he is unable to recover the possession and protect his rights. He further stated that in order to knock off the suit schedule property, the defendant No.2 to 5 have colluded with defendant No.1 and defendant No.6, who had filed a suit against defendant No.2 to 5 in O.S.No.323/1998 and after the judgment and decree passed in the said suit the defendants in order to not to honour the agreement and defraud him and to make wrongful gain to them have made false statements and has filed false affidavit before this court and have dispossessed him from the suit schedule property.
30. He further stated that he has filed suit in O.S.No.25531/2010 against the defendants seeking the relief of specific performance of contract. He further stated that in the written statement and in the affidavit evidence filed in O.S.No.25531/2010, the 32 O.S.No.6381/2009 defendants stated that they have not at all executed the agreement and power of attorney. He further stated that on 15/4/2013 his advocate cross-examined defendant No.2 to 5 in O.S.No.25531/2010 and in the cross-examination in total contradictory to the statements made in the affidavit in O.S.No.25531/2010 and in the written statement filed in the said suit, the defendant No.1 has admitted the execution of sale agreement and General Power of Attorney. He further stated that in the cross- examination he has also stated that for 20 long years he has fought the case against the defendant No.1 in O.S.No.323/1988 by deposing false to the court that the property belongs to him. He further stated that in the written statement filed by defendant No.2 to 5 they have stated that they have not executed agreement and have admitted that they have signed to Ex.P2, i.e., power of attorney. Whereas in the written statement filed by them in O.S.No.25531/2010 they have denied the execution of both the documents. Whereas in the 33 O.S.No.6381/2009 cross-examination the defendant No.2 has admitted the signatures both on sale agreement and General Power of Attorney. He further stated that the defendants are making statements on oath before the court as per their whims and fancies to facilitate their changing circumstances.
31. He further stated that he filed RFA No.794/2009 before the Hon'ble High Court of Karnataka against the judgment and decree passed in O.S.No.323/1988 and the Hon'ble High Court of Karnataka has held that his suit has to be decided independently by this court without getting influenced by judgment and decree passed in O.S.No.323/1988. He further stated that he was in possession of the suit property as on 19/2/2009 and he has been dispossessed by the defendants thereafter thereby depriving his physical possession of the suit schedule property. He further stated that the dispossession has taken place without his consent and the same was 34 O.S.No.6381/2009 done otherwise than in due course of law, and that the dispossession took place within six months before the institution of this suit and therefore under section 6 of the Specific Relief Act, 1963, he is entitled to be put back in possession of the suit schedule property. He further stated that the suit filed by him for specific performance of the agreement was dismissed and he has preferred RFA before the Hon'ble High Court of Karnataka and the same is pending consideration. In support of his case he got marked 25 documents from Ex.P1 to Ex.P25. In view of his above oral and documentary evidence, he prays for to decree the suit.
32. The defendant No.2 to 5 in order to establish their case, defendant No.2 himself got examined as DW1 and filed his affidavit by way of examination-in- chief wherein he reiterated all the averments made in the written statement. DW1 further on oath stated before the court that the plaintiff filed the present suit on the basis of the alleged agreement of sale dated 35 O.S.No.6381/2009 20/12/1989 and alleged General Power of Attorney dated 21/7/2001 alleged to be executed in his favour by himself and defendant No.3 to 5. He further stated that neither he himself nor defendant No.3 to 5 have not at all executed any kind of documents muchless the documents as claimed by the plaintiff as referred above. He further stated that when they have not at all executed any documents muchless the documents as referred above, the question of receiving advance consideration amount of Rs.10,000/- and additional amount of Rs.85,000/- as claimed by the plaintiff does not arise at all.
33. He further stated that in fact the defendant No.1 has filed the suit against him and his brother in O.S.No.323/1988 seeking the relief of permanent injunction in respect of the suit schedule property and the said suit was decreed by holding that defendant No.1 herein is in possession and enjoyment of the suit schedule property and the property claimed by the 36 O.S.No.6381/2009 plaintiff in the present suit is not at all in existence. He further stated with regard to the fraudulent act of their advocate by name Krishna Reddy, who representing them in O.S.No.323/1988 and he has stated how and under what circumstance he has created General Power of Attorney dated 21/7/2001. He further stated that their earlier advocate Krishna Reddy is none other than the brother-in-law of the plaintiff and the plaintiff has filed the present suit only at the instigation of the said advocate Krishna Reddy.
34. He further stated that though they had contested O.S.No.323/1988 filed by the 1st defendant herein on the ground to identify of the property in question, they have suffered the decree in that suit in which it has been held that the property as described in the present suit does not exist and what exceeds is one as such in plaint O.S.No.323/1988. Therefore the findings given in the above suit is binding on them and therefore there cannot be any merit in the say of the 37 O.S.No.6381/2009 plaintiff that the present suit property is still in existence. It is further contended that the suit in O.S.No.323/98 was filed by Srinivas Reddy against him and his brother contending that he is in possession and enjoyment of the suit schedule property and when the said suit came to be decreed on 29/1/2009 holding that the plaintiff Srinivas Reddy is in actual possession and enjoyment of the schedule property where was the question of plaintiff putting in possession of the suit property and his alleged dispossession on 19/2/2009. He further stated that the plaintiff was never in possession of the property in question and at any point of time and hence there was no necessity to dispossessing him from the same as on 19/2/2009. He further stated that though he himself and his brother have asserted in the earlier litigation in O.S.No.323/1988 there is a property bearing K.No.8/1 and that it belongs to them, but their contention was negatived in O.S.No.323/88 and as a law abiding citizen, they have to accept the same. It is further 38 O.S.No.6381/2009 contended that the plaintiff does not have any manner of right, title, interest in the property in question or any portion there of. There cannot be any cause of action to file the suit. In view of his above contentions he sought for the dismissal of the suit.
35. The defendant No.1 in order to establish his case and also the case of defendant No.6 who is none other than his wife, himself got examined as DW2 and filed his detailed affidavit by way of examination-in- chief wherein he reiterated all the averments made in the written statement. DW2 further on oath stated before the court that there is no cause of action for the plaintiff to file the present suit against defendant No.6. He further stated that he has filed the suit in O.S.No.323/88 on 16/11/88 in respect of the properties bearing K.No.7/1-2, 7 & 8, all together measuring 100 x 100 feet situated at Parangipalya grama, and the said suit for permanent injunction was filed on 16/11/1988 by him against defendant No.2 39 O.S.No.6381/2009 and his brother Chikkanna and the said suit came to be decreed on 20/1/2009. So he stated that in the said suit it was held that he was the owner in lawful possession and enjoyment of the above referred property till he executed the registered gift deed dated 2/5/2009 in favour of the 6th defendant. So he stated that he was in the lawful possession and enjoyment of the aforesaid gifted property till the date of gift in favour of defendant No.6, the question of dispossession of the plaintiff by defendant No.1 to 5 from non- existing suit schedule property No.8/1 of Parangipalya on 19/2/2009 does not arise. He further stated that the question of dispossession of the plaintiff from the alleged suit schedule property by himself and defendant No.2 to 5 does not arise at all.
36. He further stated that when the alleged sale agreement executants of the plaintiff, i.e., 2nd defendant and his elder brother Chikkanna were not at all in possession of the suit site as on the date of the 40 O.S.No.6381/2009 alleged sale agreement dated 20/12/1989 and as the 1st defendant was in lawful possession as per the judgment and decree passed in O.S.No.323/1988, the question of dispossession of the plaintiff from the alleged suit property by the defendants No.1 to 5 on 10/2/2009 does not arise. He further stated that the plaintiff is claiming the suit schedule property through defendant No.2 to 5 but no where in the plaint he has stated the mode of acquisition of right, title or interest in respect of the suit schedule property by defendant No.2 to 5 or their ancestors because neither defendant No.2 to 5 or their ancestors possessed the suit site at any time. He further stated that he had purchased the property bearing K.No.7/1-2 measuring 50 x 100 feet under a registered sale deed dated 14/10/1987 executed by Smt.Gowramma and others and his father Narayana Reddy had an younger brother by name Thimma Reddy, who was the owner of property bearing K.No.7 and 8 and who had gifted the same through a gift deed dated 24/8/1980 and the same measures 41 O.S.No.6381/2009 about 5 guntas which comes to nearly 5,000 sq.ft or 50 x 100 feet and thus the 1st defendant became the absolute owner of both the properties, i.e., 7/1-2 by virtue of sale deed dated 14/10/1987 and K.No.7 & 8 through a gift deed dated 24/8/1980 and thus the said properties together measures 100 x 100 and he was in possession of the same till he gifted the same on 2/5/2009 in favour of his wife, i.e., 6th defendant.
37. He further stated that the plaintiff is attempting to claim the possession of the suit schedule property through a got up sale agreement dated 20/10/1989 and General Power of Attorney dated 21/7/2001 said to have been executed by defendant No.2 to 5 which according to him are forged and fabricated document. As such, no reliance can be placed upon the said two concocted documents. He further stated that upon perusal of the alleged sale agreement does not disclose delivery of possession of the alleged property in question to the plaintiff. 42 O.S.No.6381/2009 Further, General Power of Attorney dated 21/7/2001 is also not properly stamped. Hence it attracts duty and penalty, as such no reliance can be placed upon the same.
38. He further stated that the present suit is an outcome of instigation of an advocate Krishna Reddy, brother-in-law of the plaintiff, who was appearing for the defendant No.2 to 5 in O.S.No.323/88. He further stated that the plaintiff was not at all in possession of the suit schedule property and the suit filed by the plaintiff in O.S.No.25531/2010 seeking the relief of specific performance was dismissed by the court. In support of his case he got marked six documents from Ex.D1 to Ex.D6. In view of his oral and documentary evidence he sought for the dismissal of the suit.
39. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff has filed the present suit seeking the 43 O.S.No.6381/2009 possession of the suit schedule property from the defendants. He further contended that the defendant No.2 to 5 are the absolute owners of the suit schedule property and they have acquired the same in a family partition. He further contended that the defendant No.2 to 5 offered to sell the suit schedule property to the plaintiff for a consideration of Rs.50,000/- and accordingly on 20/12/1989 executed an agreement of sale by receiving an advance amount of Rs.10,000/- He further contended that though the plaintiff insisted the defendants for completion of sale, but they disclosed that the 1st defendant filed a case for injunction in respect of the non-existing property in order to knock off the suit schedule property and sought time to complete the sale after the end of the said litigation. He further contended that the defendant No.2 to 5 demanded to increase the sale consideration and to pay the entire amount to meet the said litigation and other legal necessities, accordingly the defendant No.2 to 5 received a further sum of 44 O.S.No.6381/2009 Rs.85,000/- on 20/12/1982 in the presence of witnesses and to that effect they executed a shara on the agreement of sale dated 20/12/1989. In order to substantiate his contention he placed his reliance upon Ex.P1, i.e., agreement of sale dated 20/12/1989 and the endorsement with regard to the receipt of additional amount of Rs.85,000/- in the said document.
40. He further contended that since the litigation in between the 1st defendant and 2nd defendant and his brother prolonged for long time, as such, the defendant No.2 representing defendant No.3 to 5 executed General Power of Attorney dated 21/7/2001 along with his elder brother in favour of the plaintiff delegating all their property rights, i.e., the rights in respect of the suit property and put the plaintiff in possession of the suit schedule property. In order to substantiate his contention with regard to the execution of General Power of Attorney dated 45 O.S.No.6381/2009 21/7/2001 he has placed his reliance upon Ex.P2. He further contended that by virtue of the plaintiff was put in possession of the suit schedule property he started paying property tax to the CMC, Bommanahalli from 1995-96 to 2001-02 and there afterwards from 2002-03 to 2005-06 under self assessment scheme. In order to substantiate his contention he placed his reliance upon Ex.P4 to Ex.P12. So he contended that the plaintiff has acquired indefeasible interest in the suit schedule property on part performance of contract as per Ex.P1 dated 20/12/1989 by performing several acts and he is in possession and enjoyment of the same openly and continuously from 21/7/2001 till February 2009.
41. He further contended that the defendant No.1 filed suit against defendant No.2 and his brother Chikkanna in O.S.No.323/1988 seeking the relief of permanent injunction and the said suit was decreed by judgment and decree dated 29/1/2009. He further 46 O.S.No.6381/2009 contended that the plaintiff in the said suit, i.e., defendant No.1 herein and defendant No.2 and his brother, i.e., Chikkanna have colluded with each other and got decreed the suit. In order to substantiate his contention, i.e., the said suit was decreed he placed his reliance upon certified copy of the judgment and decree passed in the said suit at Ex.P13 and Ex.P14. He further contended that by virtue of the decree obtained by them in the said suit the 1st defendant forcibly occupied the suit schedule property to defraud the plaintiff and to make unlawful gain. He further contended that though the defendants have no manner of right, title or possession in the suit schedule property still the plaintiff is unable to recover the possession and protect his rights in respect of the suit schedule property as because the defendants are most powerful persons.
42. He further contended that the defendants claims that Ex.P1 agreement to sell and Ex.P2 General 47 O.S.No.6381/2009 Power of Attorney are concocted and created documents and the defendant used to sign as Chikka Appaiah, but not as Papapiah and that aspect itself shows that both the above referred two documents are concocted and fabricated documents. So far as the said contention of the defendants is concerned what he contended that the 2nd defendant used to sign as Papaiah only, but not as Chikka Papaiah and the very documents produced by the plaintiff at Ex.P19 and Ex.P2, i.e., certified copy of the vakalathnamma of D2 filed in O.S.No.323/1988 shows that he used to sign as Papaiah but not as Chikka Papaiah. So what he contended that the defendants in order to over come from their liability they have taken such a false contention. He further contended that the brother-in- law of the plaintiff one Krishna Reddy is an advocate and he was representing the defendant No.2 to 5 in O.S.No.323/1988 and the said defendants have totally believed the said counsel and taking advantage of the same the brother-in-law of the plaintiff got created 48 O.S.No.6381/2009 Ex.P2 General Power of Attorney by playing fraud on the signature obtained to Ex.P2 General Power of Attorney. So far as the said contention of the defendants what he contended that though they contended that by playing fraud Ex.P2 General Power of Attorney was created, but they have not proved how and in what manner the fraud played by the brother- in-law of plaintiff Krishna Reddy who is an advocate. What he contended that when they contended that the brother-in-law of the plaintiff played fraud it is for them to prove the fraud in the manner known to law. In support of his contention he placed his reliance upon the decision reported in (1994)1 SCC page 1.
43. He further contended that the defendants claims that the defendant No.2 to 5 have no right and interest in respect of the suit schedule property and they are no way concerned with the suit schedule property and the property in question is belongs to defendant No.1. He further contended that though the 49 O.S.No.6381/2009 defendants have contended like so, but the very evidence given by defendant No.2 herein in O.S.No.25531/2010 goes to show that they are falsely contending that the suit schedule property is not belongs to defendant No.2 to 5. In order to substantiate his contention he placed his reliance upon Ex.P16 and Ex.P17. By placing his reliance upon Ex.P2 document what he contended that defendant No.2 herein in his cross-examination is quite contrary to the evidence given by him in his chief-examination. So what he contended that the above said aspect itself shows that in order to defeat the right of the plaintiff over the suit schedule property and also to overcome from their liability they have taken the above said false contention.
44. He further contended that the plaintiff was in possession of the suit schedule property openly, continuously, notoriously from 21/7/2001 till 3rd week of February 2009. He further contended that the 50 O.S.No.6381/2009 defendants in O.S.No.323/98 by colluding with each other got decreed the suit in favour of defendant No.1 and by virtue of the decree obtained by defendant No.1 in the said suit, he took forcible possession of the suit schedule property and dispossessed the plaintiff from the suit schedule property. He further contended that within six months from the date of dispossession of the plaintiff from the suit schedule property he has filed present suit as per section 6 of the Specific Relief Act, 1963. He further contended that though the plaintiff is not a party to O.S.No.323/1998, but he has challenged the judgment and decree passed in the said suit in RFA No.794/2009 and the said matter was disposed off by the Hon'ble High Court of Karnataka with an observation that the courts below consider the suit of the plaintiff independently without being influenced by the observation made in the said Regular First Appeal. In order to substantiate his contention he placed his reliance upon Ex.P18. He further contended that though the suit filed by the plaintiff 51 O.S.No.6381/2009 herein in O.S.No.25531/2010 seeking the relief of Specific Performance was dismissed, but being assailed by the judgment and decree passed in the said suit, the plaintiff has preferred Regular First Appeal before the Hon'ble High Court of Karnataka and the said matter is still pending consideration. He further contended that though the plaintiff was cross- examined by the counsels representing the defendants but nothing has been elicited to disprove the factum of he was in possession of the suit schedule property and was dispossessed by the defendants by virtue of judgment and decree obtained in O.S.No.323/1998. So what he contended that the very oral and documentary evidence placed before the court clearly goes to show that the plaintiff has succeeded to prove the stand taken by him and in view of his above arguments he urged to answer issue No.1 and 2 in the Affirmative.
52 O.S.No.6381/2009
45. The learned counsel for the defendant No.1 to 5 during the course of his arguments contended that the plaintiff has filed the present suit seeking for possession of the suit schedule property. He further contended that it is the contention of the plaintiff that the defendant No.2 to 5 are the absolute owners of the suit schedule property and they have acquired the same in family settlement. He further contended that it is the contention of the plaintiff that the defendants have agreed to sell the suit schedule property for consideration of Rs.50,000/- and accordingly on 20/12/1989 executed an agreement of sale by receiving Rs.10,000/- and also as per the request made by the defendants they have paid additional enhanced amount of Rs.85,000/-. It is the contention of the plaintiff that since the defendant No.1 filed suit against defendant No.2 and his brother Chikkanna in O.S.No.323/1998 and the said suit would take long time to reach finality, as such on 21/7/2001 the defendant No.2 to 5 have executed General Power of 53 O.S.No.6381/2009 Attorney dated 21/7/2001 in favour of the plaintiff and hand over the entire possession of the suit schedule property to the plaintiff and thereby the plaintiff was put in possession of the suit schedule property. So far as the said contention of the plaintiff is concerned, what he contended that the defendant No.2 to 5 have not at all executed Ex.P1 agreement to sell and Ex.P2 General Power of Attorney and both are concocted and created documents by the plaintiff in active collusion with her brother-in-law and sister. He further contended that the defendant No.2 used to sign as Chikka Papaiah, but not as Papaih, but in the above referred two documents it was only mentioned as Papaiah. So what he contended that that aspect itself shows the above referred two documents are got created by the plaintiff in collusion with her brother- in-law and sister.
46. He further contended that when the defendant No.2 to 5 not at all executed Ex.P1 54 O.S.No.6381/2009 agreement to sell, the question of receiving Rs.10,000/- and additional enhanced amount of Rs.85,000/- as claimed by the plaintiff does not arise. He further contended that in a suit filed by the defendant No.1 against defendant No.2 and his brother Chikkanna in O.S.No.323/88 it was held that the defendant No.1 is in possession and enjoyment of the suit schedule property in question and the property claimed by the plaintiff herein is not at all in existence. He further contended that the plaint averments and the evidence of PW1 does not disclose with regard to the factum of the plaintiff was in possession and he was dispossessed by the defendants. He further contended that though the defendant No.2 and his brother Chikkanna contested O.S.No.323/98 filed by the 1st defendant herein on the ground of identity of the property in question, but the defendant No.2 and his brother have suffered the decree in the said suit and in which it was held that the property described in the present suit does not exist and as described in 55 O.S.No.6381/2009 plaint in O.S.No.323/98. So what he contended that the finding or judgment in O.S.No.323/98 is binding on defendant No.2 and his brother Chikkanna and all defendant No.2 to 5. He further contended that in the said suit, i.e., O.S.No.323/98 it was held that defendant No.1 herein is in actual possession and enjoyment of the suit schedule property and when that would be the case the question of plaintiff putting into the possession of the said property and alleged dispossession on 19/2/2009 does not arise. So what he contended that the plaintiff was never in possession of the property in question at any point of time. As such there was no question of dispossession from the same as on 19/2/2009. So in view of his arguments he urged to answer issue No.1 and 2 in the Negative.
47. The learned counsel for the defendant No.6 filed his written arguments wherein he contended that there is no cause of action for the plaintiff to file the suit against defendant No.6. He further contended 56 O.S.No.6381/2009 that the plaintiff has filed the present suit mainly on the basis of Ex.P1 agreement to sell and Ex.P2 General Power of Attorney. He further contended that though the plaintiff claims that he was in possession of the suit schedule property, but in fact he was never in possession of the suit schedule property earlier to 19/2/2009. He further contended that the defendant No.1 has proved in O.S.No.323/98 that as on the date of filing the said suit on 16/11/1998 till its disposal on 29/1/2009 and subsequently till the date of gift deed on 2/5/2009 executed in favour of 6th defendant he was in possession of the property in question. He further contended that the 1st defendant has executed a registered gift deed as per Ex.D3 in favour of defendant No.6 on 2/5/2009 and delivered the possession of the property in question and since then the 6th defendant was in lawful possession and enjoyment of the same as the donee of the gifted property. So he contended that no cause of action has arose against the 6th defendant on 19/2/2009, i.e., the 57 O.S.No.6381/2009 alleged date of plaintiffs dispossession, since gift deed is dated 2/5/2009. He further contended that as per section 6 of the Specific Relief Act, 1963 if any person is dispossessed of an immovable property he shall bring the suit for recovery of possession against the persons who have dispossessed unlawfully just six months earlier to the suit by the defendants. But the same has not been proved by the plaintiff.
48. He further contended that the 1st defendant had purchased the property bearing No.7/1-2 measuring 50 x 100 feet under registered sale deed dated 14/10/1987 executed by Gowramma and others. Further the 1st defendant's father Narayana Reddy had an younger brother by name Thimma Reddy who was the owner of the property bearing No.K.7 and 8 and he had gifted dated 24/8/1980 in favour of defendant No.1's father Narayana Reddy and on his demise defendant No.1 succeeded to the same which measures 5 guntas comes to nearly 50 sq,ft 58 O.S.No.6381/2009 which factum was considered after the death of his father. So he contended that the 1st defendant became the absolute owner of both the properties as stated above. He further contended that the plaintiff has been claiming interest in the suit schedule property through an agreement of sale dated 20/12/1989 and General Power of Attorney dated 21/7/2001 said to have been executed by the defendants, but no where in the plaint it is mentioned through which documents defendant No.2 to 5 or their ancestors have acquired the right, title, interest and possession of the same. So he contended that the claim of the plaintiff is illegally obtained is unsustainable. He further contended that the alleged Ex.P1 agreement of sale and Ex.P2 dated 21/7/2010 alleged to have been executed by defendant No.2 to defendant No.5 are forged and fabricated documents by the plaintiff and his brother-in-law M.Krishna Reddy and others. He further contended that the very evidence given by PW1 in the cross- examination shows that she pleaded her ignorance by 59 O.S.No.6381/2009 saying that she does not know who has prepared Ex.P1 and Ex.P2, but the same was prepared on the same date in the house / office of M.Krishna Reddy. So what he contended that the said evidence given by PW1 in the cross-examination itself clearly goes to show that Ex.P1 and Ex.P2 are fabricated and created documents.
49. He further contended that the defendant No.1 herein filed a suit in O.S.No.323/88 against defendant No.2 and his brother Chikkanna and the said suit was decreed by holding that the defendant No.1 herein is in possession and enjoyment of the suit schedule property and the property in question in the present suit is not at all in existence and the defendant No.1 is in possession of the property which is the subject matter in O.S.No.323/98. So what he contended that the property claimed by the plaintiff is not at all in existence. He further contended that the plaintiff on the basis of Ex.P1 and Ex.P2 filed 60 O.S.No.6381/2009 O.S.No.25531/2010 seeking the relief of specific performance of contract against defendants and the said suit was dismissed. In order to substantiate his contention, he placed his reliance upon Ex.D1 and Ex.D2. So what he contended that when the suit of the plaintiff seeking for specific performance of contract on the basis of the above referred two documents was dismissed, the plaintiff cannot claim possession on the basis of the said two got up and created documents. So he contended that absolutely there is no acceptable evidence placed before the court to show that the plaintiff was in possession of the suit schedule property and he was dispossessed by the defendants. So in view of his above arguments he urged to answer issue No.1 and 2 in the Negative.
50. In the light of the arguments canvassed by the learned counsel for the plaintiff, the learned counsel for the defendant No.1 to 5 and the written arguments submitted by the learned counsel 61 O.S.No.6381/2009 representing the defendant No.6, I have gone through the records and also the decision as relied upon by the learned counsel for the plaintiff.
51. Admittedly this is a suit filed by the plaintiff seeking for possession of the suit schedule property under section 6 of the specific Relief Act, 1963. Before appreciating the case of the parties at this juncture it would be relevant to refer Section 6 of Specific Relief Act, 1963 which reads as under:
This suit filed by a person dispossessed of immovable property -
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought -
62 O.S.No.6381/2009
(a) after the expiry of six months from the date of dispossession; or
(b) against the government, (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
52. So from reading the above section it shows that a person who seeks possession of the property and in order to attract section 6 of the specific Relief Act, 1963 he is required to prove 4 ingredients which are as under:
(1) He shall be in possession of the disputed property.
(2) He was dispossessed.63 O.S.No.6381/2009
(3) The said dispossession was otherwise than in due course of law and he was in the possession within six months before the institution of this suit.
53. It is only on showing above referred four ingredients, the aggrieved party can recover the possession from the dispossessor.
54. Keeping in mind the above ingredients of section 6 of the Specific Relief Act 1963, it would be just and appropriate to examine the case of the parties.
55. In order to prove the defendant No.2 to 5 have agreed to sell the suit schedule property for Rs.50,000/- and received part consideration amount of Rs.10,000/- and executed an agreement of sale dated 20/12/1989 and later enhanced sale consideration amount Rs.85,000/- was received by the defendants and executed a shara on 20/2/1989 on the agreement of sale i.e., Ex.P1, the plaintiff has produced agreement 64 O.S.No.6381/2009 of sale at Ex.P1, General Power of Attorney at Ex.P2, tax paid receipt for the years 2002-03 to 2005-06 at Ex.P3 to Ex.P11. Admittedly the plaintiff has filed the present suit seeking for possession of the suit schedule property on the basis of Ex.P1 agreement of sale alleged to have been executed on 20/12/1989 in respect of the suit schedule property bearing K.No.8/1. It is the contention of the plaintiff that defendant No.2 to 5 claims to be the absolute owners in possession of the suit schedule property which was allotted to them in a family settlement. When that would be the case and when the plaintiff has contended like so, it is the duty of the plaintiff to establish before the court that as on the date of Ex.P1 agreement of sale the defendant No.2 to 5 were the absolute owners in possession of the suit schedule property and they had right to alienate title in favour of plaintiff in part performance of the contract. 65 O.S.No.6381/2009
56. Per contra the defendant No.1 in his written statement contended that the suit property was not under the ownership of defendant No.2 to 5 and it is his property in terms of the decree passed in O.S.No.323/1988. The defendant No.2 to 5 in their written statement contended that they are not the owners in possession of the suit schedule property.
57. In view of specific denial of ownership of the suit schedule property by defendant No.2 to 5, it is the duty of the plaintiff to prove that on the date of execution of Ex.P1 agreement to suit schedule property was under the ownership and possession of the defendant No.2 to 5. Admittedly though the plaintiff claims that the defendant No.2 to 5 are the owners in possession of the suit schedule property on the date of execution of Ex.P1 agreement of sale, he did not produce any materials evidence in this case. Upon perusal of the plaint averments and the evidence affidavit of PW1, wherein he has pleaded that in terms 66 O.S.No.6381/2009 of the family settlement, the suit schedule property was allotted to defendant No.2 to 5, but admittedly no settlement deed was produced in this case. It is an undisputed fact that a contract of sale, i.e., an agreement of sale does not by itself create any interst or charge on the property which is very clear from the reading of section 54 of Transfer of Property Act. The contract of sale creates fiduciary character of the present obligation which is recognized by section 3 of Specific Relief Act, 1963. The same is an obligation arising out of contract and indicates all the ownership of the property, but not amounting to an interest or easement therein, thereby it is very clear that Ex.P1 agreement of sale itself does not create any interest in respect of the suit schedule property. Admittedly the plaintiff in order to show that on the date of Ex.P1 agreement of sale the defendants No.2 to 5 were the owners in possession of the suit schedule property, whose name was recorded in the CMC records as owners in possession absolutely no material evidence 67 O.S.No.6381/2009 has be placed before the court in this case. The very certified copy of the judgment and decree produced by the plaintiff himself at Ex.P13 and Ex.P14, i.e., judgment and decree passed in O.S.No.323/88 clearly shows that the property bearing No.7 and 8 of Parangipalya clearly shows that the defendant No.2 to 5 are not in possession of property bearing No.7 and 8 of Parangipalya and were not the owners of the suit schedule property on the date of execution of Ex.P1 agreement of sale, thereby it is clear that on the date of execution of Ex.P1 agreement of sale defendant No.2 to 5 had no alienable title over the suit schedule property. When the plaintiff has failed to produce acceptable material evidence to show that the defendant No.2 to 5 had an alienable title over the suit schedule property on the date of execution of agreement of sale, i.e., Ex.P1, the say of the plaintiff that the defendant No.2 to 5 have executed the said document by receiving the advance amount of Rs.10,000/- out of Rs.50,000/- 68 O.S.No.6381/2009 and subsequently received enhanced additional amount of Rs.85,000/- cannot be accepted.
58. The defendant No.2 to 5 in the written statement and DW1 in his evidence specifically denied the execution of Ex.P1 agreement of sale. When that would be the case it is the burden of the plaintiff to prove the due execution of Ex.P1 agreement of sale and payment of the sale consideration amount. Upon perusal of the evidence given by PW1 in the cross- examination it shows that wherein she has categorically deposed that she does not know who has prepared Ex.P1 agreement of sale. So also the very evidence given by PW1 in the cross-examination clearly shows that the defendant in O.S.No.323/88 in the written statement have not stated anything about the execution of Ex.P1 agreement of sale. So the above evidence given by PW1 in the cross-examination goes to create a doubt in the mind of the court with regard to the due execution of alleged Ex.P1 agreement of sale 69 O.S.No.6381/2009 and Ex.P2 General Power of Attorney. The evidence on record clearly shows that the defendant No.2 to 5 have denied the due execution of Ex.P1 agreement of sale and even the defendant No.2 has specifically contended that he used to first sign as Chikka Papaiah but not as Papaiah and the signature forthcoming in the said two documents, i.e., Ex.P1 and Ex.P2 are not that of defendants, but inspite of that the plaintiff has not taken any steps in the manner known to law to prove the signature forthcoming in Ex.P1 and Ex.P2 are that of the defendants only. Even the plaintiff has not made any venture to prove the due execution of the above referred two documents by examining the witnesses to the said documents. All these circumstances would create a doubt in the minds of the court to believe the stand taken by the plaintiff. The evidence given by PW1 in the cross-examination as referred above would goes to support the contention taken by the defendants that Ex.P1 and Ex.P2 are got 70 O.S.No.6381/2009 created by plaintiff in active collusion with her brother- in-law Krishna Reddy and his wife Anjali Reddy.
59. As it is already stated above the plaintiff claims that the defendant No.2 to 5 have executed Ex.P1 agreement of sale. Upon perusal of Ex.P1 it shows that no where it was mentioned in the said document with regard to the handing over possession of the suit schedule property. Ex.P2 General Power of Attorney alleged to be executed in the year 2001 and the plaintiff claims that on the date of execution of the said document the possession of the suit schedule property was given to her. As it is already stated above the defendants have totally denied the execution of the above referred two documents and also as it is already discussed above no acceptable evidence neither oral or documentary evidence placed before the court with regard to the due execution of Ex.P1 and Ex.P2. When that would be the case, it is for the plaintiff to establish before the court that by virtue of Ex.P1 and 71 O.S.No.6381/2009 Ex.P2 documents she was put in possession of the suit schedule property. But admittedly no acceptable neither oral nor documentary evidence has been placed before the court to show that she was in possession of the suit schedule property. The plaintiff contended that the suit filed by defendant No.1 in O.S.No.323/88 was decreed in view of collusion by defendants of the said suit with the plaintiff of the said suit and after obtaining the decree in the said suit by defendant No.1 he forcibly took possession of the suit schedule property. What she contended that she was dispossessed in the month of February 2009. The most important aspect to be taken note of here is that and also it is already discussed above, absolutely no acceptable material has been placed before the court by the plaintiff to show that she was put in possession of the suit schedule property by virtue of alleged Ex.P1 and Ex.P2. When that would be the case and when she has failed to prove that she was in possession of the suit schedule property, the question of she was 72 O.S.No.6381/2009 dispossessed from the suit schedule property in the month of February 2009 cannot be accepted as because there is no acceptable neither oral or documentary evidence with regard to the said stand taken by the plaintiff. It is an well established principles of law as per section 53A of Transfer of Property Act if a person is put in possession of the property by virtue of agreement of sale, the said document is required to be registered, but admittedly Ex.P1 is an unregistered document.
60. It is an undisputed fact that the plaintiff herein filed O.S.No.25531/2010 against defendant No.2 to 5 seeking the relief of specific performance of contract and the said suit was filed by the plaintiff herein on the basis of Ex.P1 and Ex.P2 produced herein and the said suit was dismissed by the court by the judgment and decree dated 20/7/2013. The defendant No.1 has produced certified copy of the judgment and decree at Ex.D1 and Ex.D2. Upon 73 O.S.No.6381/2009 perusal of the said judgment and decree it shows that wherein it was held by the said court which passed the judgment that the plaintiff herein has failed to prove the due execution of Ex.P1 and Ex.P2. When the documents relied upon by the plaintiff, i.e., Ex.P1 and Ex.P2 herein are nullified by judgment and decree passed in O.S.No.25531/2010 the plaintiff cannot claim that she was put in possession of the suit schedule property under the alleged Ex.P1 and Ex.P2 document. Apart from that as it is already discussed above, absolutely no acceptable neither oral or documentary evidence to show that the plaintiff was put in possession of the suit schedule property under the above referred alleged two documents and she was dispossessed by the defendants as contended by them. Upon perusal of the plaint averments and the evidence affidavit of PW1 shows that no details has been given, i.e., to say when the plaintiff was put in possession and when she was dispossessed by the defendant 74 O.S.No.6381/2009 No.1. Under such circumstances whatever the contention taken by the plaintiff cannot be accepted.
61. The defendant No.1 in his written statement and evidence contended that he is the absolute owner of the property in question and the defendant No.2 to 5 are not the owners of the suit schedule property and when they tried to cause obstruction / interference with his peaceful possession and enjoyment of the property in question he filed suit in O.S.No.323/88 against defendant No.2 herein and his brother Chikkanna seeking the relief of permanent injunction. Admittedly the said suit was decreed which is very evident from Ex.P13 and Ex.P14, i.e., judgment and decree passed in the said suit. Upon perusal of the said documents it shows that wherein it was held by the court which has passed the decree that the defendant No.1 herein is in peaceful possession and enjoyment of the property in question and the defendants of the said suit are not the owners of the 75 O.S.No.6381/2009 suit schedule property and also it was held that the property in question, i.e., the property claimed by the plaintiff is not in existence. When such would be the case the say of the plaintiff that she was put in possession of the suit schedule property by virtue of alleged Ex.P1 and Ex.P2 and she was dispossessed by the defendant No.1 by virtue of judgment and decree passed in O.S.No.323/88 cannot be accepted. Absolutely there is no neither oral or documentary evidence to show that the plaintiff was in possession of the suit schedule property by virtue of alleged Ex.P1 and Ex.P2 and she was dispossessed by the defendants. When that would be the case, it is needless to say that the plaintiff has failed to prove the necessary ingredients to section 6 of the Specific Relief Act, 1963. Under such circumstances, this court has left with no option except to answer issue No.1 and 2 for consideration in the Negative. Accordingly issue No.1 and 2 are answered in the Negative.
76 O.S.No.6381/2009
62. Issue No.3: Before concluding the judgment it would be just and appropriate to consider the objection raised by the office with regard to the court fee paid by the plaintiff and also the contention taken by defendant No.6 in the written statement that the court fee paid by the plaintiff is insufficient and the valuation slip attached to the plaint is not correct. Though the office has raised objection with regard to the court fee and the defendant No.6 has contended with regard to the same in her written statement inspite of that the learned counsel representing the plaintiff has not addressed his arguments with regard to the payment of court fee paid by the plaintiff.
63. Admittedly this is a suit filed by the plaintiff for possession of the suit schedule property. Upon perusal of the valuation slip attached to the plaint it shows that the plaintiff has paid the court fee of Rs.1,00,625/- under section 28 of the Karnataka Court Fees and Suit Valuation Act showing the value 77 O.S.No.6381/2009 of the property in question as Rs.36,00,000/- and as per the said section he has paid court fee on half of the market value of the property in question. As it is already stated above admittedly this is a suit filed by the plaintiff for possession of the suit property. The plaintiff has shown the value of the suit schedule property as Rs.36,00,000/- but in proof of the same, i.e., to say as on the date of filing the suit the value of the suit property was Rs.36,00,000/- he has not produced acceptable material and the valuation slip attached to the plaint does not disclose on what basis he has shown the value of the property as Rs.36,00,000/- as on the date of filing the suit. When that would be the case, it is needless to say that the value of the property in question shown by the plaintiff is not correct. Under such circumstances it is needless to say that the value of the property shown in valuation slip is not correct. When the plaintiff sought for possession of the suit schedule property he is required to pay court fee under section 29 of the 78 O.S.No.6381/2009 Karnataka Court Fees and Suit Valuation Act, 1958. So for the reasons stated above, it can be said that the court fee paid by the plaintiff is insufficient and the valuation slip attached to the plaint is not proper and correct. In view of my findings to the above the plaintiff is not entitled for any relief, muchless the relief of possession of the suit schedule property. Accordingly issue No.3 is answered in the Negative.
64. Issue No.4: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 4th day of June 2018).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.79 O.S.No.6381/2009
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 - Vishwanatha Reddy Witnesses examined for the defendant:
D.W.1 - Chikkapapaiah
D.W.2 - N.Srinivas Reddy
Documents marked for the plaintiff:
Ex.P.1 - Certified copy of sale deed dated
20/12/1989
Ex.P.2 - Certified copy of Moktharnama dated
21/7/2001
Ex.P.3 - Certified copy of Moktharnama dated
30/6/2000
Ex.P.4 - Tax paid receipt
Ex.P.5 - Certified copy of assessment
Ex.P.6 - Certified copy of tax receipt
Ex.P.7 - Certified copy of tax receipt
Ex.P.8 - Tax paid receipt
Ex.P.9 - Certified copy of tax receipt
Ex.P.10 - Tax paid receipt
Ex.P.11 - Certified copy of tax receipt Ex.P.12 - Certified copy of tax paid details 80 O.S.No.6381/2009 Ex.P.13 - Certified copy of judgment in O.S.No.323/1988 Ex.P.14 - Certified copy of decree in O.S.No.323/1988 Ex.P.15 - Certified copy of order in I.A. in O.S.No.323/88 Ex.P.16 - Certified copy of chief examination in O.S.No.25531/2010 Ex.P.17 - Certified copy of cross-examination in O.S.No.25531/2010 Ex.P.18 - Certified copy of order in RFA No.794/2009 Ex.P.19 - Certified copy of vakalath in O.S.No.323/88 Ex.P.20 - Certified copy of vakalathnama in O.S.No.323/88 Ex.P.21 - Certified copy of vakalathnama in O.S.No.323/88 Ex.P.22 - Certified copy of application in O.S.No.323/88 Ex.P.23 - Certified copy of written statement in O.S.No.323/1988.
Ex.P.24 - Certified copy of plaint in O.S.No.323/88 Ex.P.25 - Certified copy of sale deed 81 O.S.No.6381/2009 Documents marked for the defendant:
Ex.D1 - Certified copy of judgment in
O.S.No.25531/2010
Ex.D2 - Certified copy of decree in
O.S.No.25531/2010
Ex.D3 - Certified copy of gift deed dated
2/5/2009
Ex.D4 - 2 Tax paid receipts
Ex.D5 - Cash credit bill
Ex.D6 - Guarantee card
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
82 O.S.No.6381/2009
Judgment pronounced in open court
(vide separate detailed judgment)
with the following operative portion:-
ORDER The suit of the plaintiff is hereby dismiss sed.
No order as to cost.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE BANGALORE